National Department Store Chain – Breach of Contract Dispute with Real Estate Brokerage Company
Defense of a national retail chain in litigation filed by a real estate brokerage company seeking damages related to an alleged breach of contract and other claims.
Condominium Sponsor – Construction Defect Dispute with Construction Manager and Contractors
Representing the sponsor of a Brooklyn, NY condominium development in litigation with the project's construction manager and contractors arising from claims by the condominium's board of managers that work in accordance with an offering plan under which the condominium's units were sold was not adequately performed.
New York State Association for Affordable Housing – Challenge to Local Law 44
Representing the New York State Association for Affordable Housing and individual developers in litigation seeking to invalidate Local Law 44 - which requires any developer receiving city funding to submit quarterly wage reports - as unconstitutional, pre-empted by New York state law, and imposing an unreasonable economic burden on small businesses competing for affordable housing work.
Insurance Coverage Dispute – Commercial Property Insurance
Successfully represented an insurer in a dispute with a building owner over whether coverage existed under its commercial property insurance policy for over $1 million in claimed property damage caused by an underground water supply line rupture.
Private School – Defense of General Contractor’s Breach of Contract Claims
Defending a private school and affiliated religious institution in litigation with a general contractor who formerly oversaw a significant renovation at the school’s Upper East Side facility during which a fire occurred, resulting in millions of dollars in damages. In addition to defending the client from breach of contract counterclaims in ongoing litigation alleging that the fire was caused by the contractor’s negligence, Herrick successfully argued that a separate breach of contract action filed by the contractor was duplicative and harassing, securing an order from the bench dismissing the contractor’s complaint in its entirety.
Title Insurance Company and Property Owner – Restrictive Covenant Dispute
Representing the owner of a vacant parcel of land in Westchester County, New York in a dispute with neighboring property owners over our client's plans to construct an affordable housing complex. Relying on a century-old restrictive covenant contained in a prior deed which prohibited development of a "tenement or flat-house" on the property, the neighboring property owners are attempting to block our client's planned development. Herrick is defending the owner's right to develop the property, arguing that the planned modern day apartment complex is not a "tenement or flat-house" within the meaning of the restrictive covenant, and that the restrictive covenant is unenforceable.
Real Estate Litigation – Breach of Debt Obligations and Fraudulent Conveyance
Representation of real estate developers in litigation with a former investor alleged to have induced our clients into arranging and guaranteeing a loan based on false financial statements. After defaulting on the loan, the investor is alleged to have fraudulently transferred assets in an attempt to avoid liability. This litigation was ultimately settled on favorable terms to our client and voluntarily dismissed.
Construction Management Company – Wrongful Termination
Representation of a construction management company in a dispute with NYU Hospitals Center regarding the termination of a multi-million dollar renovation contract. After a trial in Federal Bankruptcy Court, the court held in favor of our client on all counts, entitling them to payment of its outstanding requisitions and dismissal of all claims against them.
Full-Service National Real Estate Development and Investment Firm – Litigation Counsel
Represent a private owner, developer and operator of residential and commercial properties in all aspects of real estate disputes.
Real Estate Owner – BSA Building Permit Challenge
Represented a Brooklyn real estate owner before the New York City Board of Standards and Appeals in connection with a successful effort to prevent adverse parties from obtaining building permits.
Major Publicly-Owned REIT – Settlement with Tenant
Represented a major, publicly-owned REIT in reaching a favorable settlement with a prospective 400,000-sq.-ft. tenant of a proposed major office building, arising from the REIT's decision to suspend development due to condition of the local real estate market.
Title Insurance Company – Class Action Defense
Representation of a title insurance company in a class action alleging overcharges on premiums for policies sold to consumers in New Jersey. We settled—on terms favorable to our client—early enough in negotiations to minimize our client's legal fees.
Irish Bank – Foreclosure on Battery Park City Building
Represented an Irish bank in a complex foreclosure of a 302-unit leasehold condominium located at 225 Rector Place in New York City. When the developer defaulted on a $165 million acquisition and construction loan, we worked with the lender to foreclose and to fend off a lender liability lawsuit.
REIT – Office Building Settlement
Represented a major, publicly-owned REIT in obtaining a favorable settlement in a multi-million dollar litigation related to cleaning and maintenance services at four large office buildings in New York City.
Title Insurance Companies – Class Action Defense
Representation of two title insurance companies in two class actions alleging overcharges on premiums for policies sold to consumers in New York. After extensive litigation, we settled on terms favorable to our clients.
Real Estate Development Company – Land Purchase Dispute
Representation of real estate development company in an appeal arising from its $3 million purchase and development of 7.5 acres of land from Hebrew Huntington Congregation. A faction of the congregation challenged the court's order that permitted our client to purchase the land under the Religious Corporations Law. The Second Department upheld the order and dismissed the appeal as moot, recognizing that our client was a bona fide good faith purchaser.
Las Vegas Conference Center Real Estate Investors – Arbitration Victory
Represented one of three investor groups in an existing five million square foot conference and exhibit center in Las Vegas in a seven-week, three-panel arbitration over each investor group's rights and ownership in the project. The panel found that all parties to the transaction, except Herrick's clients, had engaged in wrongful conduct. The conference center, at its completion, will cost more than $1 billion to build and is planned to expand to 12 million square feet.
New York Residential Brokerage Company – Successful Mediation
Representation of a prominent New York residential brokerage company in a successful mediation against a civil rights suit alleging conspiracy with building owners to steer families with children away from apartments.
Real Estate Investment Management Companies – Construction Litigation
We defended a large industrial real estate investing entity and its investment management firm in a $90 million construction defect litigation with an industrial tenant in New Jersey. We succeeded in getting most of the plaintiff’s case dismissed on summary judgment, and then settled the rest of the dispute case before trial. The settlement included the plaintiff turning over escrowed back rent to our client and entering into a favorable lease extension.
Real Estate Company – Management Agreement Litigation
Represented a real estate services company in a $20 million lawsuit brought by former customers. The former customers, owners of two large New York City office buildings, claimed that our client, which managed the buildings, had committed numerous acts of wrongdoing over several years, including breaching contracts, fraud, and breaching fiduciary duties. The customers sought to recover all the fees they’d paid our client over the years under New York’s “faithless servant” doctrine. The District Court granted our summary judgment motion, dismissing all of the higher-damage tort and equity claims, and we then settled the remaining breach of contract claim. The former customers lost their appeal to the Second Circuit Court of Appeals, bringing the case to a successful conclusion for our client.
Red Rock Services Trustee – Appellate Victory in Bankruptcy Litigation
Herrick secured an appellate victory for the chapter 7 trustee of bankrupt demolition subcontractor Red Rock Services, affirming a judgment of almost $1 million won in a bankruptcy adversary proceeding in the Eastern District of Pennsylvania. On behalf of the trustee, Herrick sued a general contractor for breach of its obligations under subcontracts with Red Rock in a pair of multimillion dollar construction projects in Baltimore and Boston. After eight days of trial, the trustee was awarded a judgment of almost $1 million, including attorneys' fees. Herrick defended the judgment on appeal to the district court, where it was affirmed, and went on to successfully defend the ruling on the defendant’s second appeal to the Third Circuit, which affirmed the judgments of the bankruptcy court and district court in their entirety.
Robert W. Seavey – Victory in $500 Million RICO Case
Representation of Robert W. Seavey, real estate developer and owner, in obtaining a U.S. District Court summary judgment dismissing a $500 million RICO case. The suit also named members of his family, the management company and accounting firm. The court found that the plaintiffs and their forensic accounting firm had failed to find any evidence supporting their claims. The decision appears to be the first New York decision that found that the federal bank fraud statute cannot serve as a predicate act in a RICO case when the plaintiff is not a financial institution. All state court claims were dismissed.
Appellate Victory for Special Servicer
Representation of a special servicer in a suit against a borrower and three individual guarantors after the borrower procured subordinate financing in violation of a non-recourse carve-out provision. Our client was the special servicer for the lender. In a case of first impression, the New Jersey Appellate Division enforced the non-recourse carve-out provision and imputed personal liability to the borrower and guarantors. It concluded that the disputed clause fixes liability rather than damages and, therefore, does not constitute an unenforceable penalty as the borrower had argued. The Appellate Division also held that the borrower's efforts to “cure” the triggering event did not vitiate personal liability. As a result, the lender properly obtained a $5 million+ deficiency judgment against the borrower and guarantors.
Real Estate Investment Company – Five-State Residential Portfolio Acquisition and Financing
Represented a major real estate investment and service company in its acquisition and financing of a five-state, 14-property portfolio of residential rental and condominium apartment complexes. The portfolio was financed through 14 first mortgage loans and 12 mezzanine loans, culminating in a four-day closing.
Asphalt Contractor – Post 9/11 Reconstruction Bidding Dispute
Representation of an asphalt contractor in challenging the bidding procedure used by New York City and utility companies to award significant street reconstruction work near the World Trade Center site after the September 11th terrorist attacks. We obtained several temporary stays on the grounds that the bidding procedure violated public procurement laws. The city cancelled its invitation to bid and used a different procurement procedure.
Subsidized Housing Project Sponsor – Market Rate Conversion
Represented a sponsor in settling a litigation involving the sponsor's effort to convert one of New York City's largest Mitchell-Lama subsidized housing projects (1,200 units on Manhattan's Upper East Side) to market rate housing. The settlement involved the creation of entirely new subsidy programs by the city and by the sponsor, and an approximately $550 million condominium conversion.
Financial Media Company – Lease Dispute
Represented a multi-billion dollar financial media company in a lease dispute involving approximately 180,000 sq. ft. of office space.
Title Insurer – Frivolous Claim Defense
Defended a title insurer in an action by a property owner seeking title insurance coverage. The court found the owner's damages to be attributable to its own actions, and impressed sanctions against the owner and its counsel, which included attorneys' fees, for prosecuting frivolous litigation.
General Contractor – Lien Foreclosure
Representation of a general contractor in a lien foreclosure action against the Metropolitan Transit Authority and the owner of 2 Broadway, New York, the MTA's headquarters. After a trial on the merits, the New York State Supreme Court awarded our client damages in excess of $1 million.
Jury Dismisses Subcontractor’s Discrimination and Breach of Contract Claims
Representation of a real estate developer and general contractor in an action by a minority subcontractor pursuing multi-million dollar discrimination and breach of contract claims. All claims were dismissed after a two week jury trial in the United States District Court for the Southern District of New York.
Joint Venture Partner – $40 Million Construction Agreement Dispute
Represented a joint venture in connection with disputes arising out of DEP construction agreements worth in excess of $40 million.
Real Estate Board of New York – Mitchell-Lama Litigation
Represented the Real Estate board of New York in its successful lawsuit against the New York City Council to overturn Local Law 79. The law required owners of Mitchell-Lama housing and housing subsidized by certain federal programs to give a right of first refusal to purchase their projects to tenants, pursuant to an ambiguous and burdensome process. The Court found that the law was preempted by federal and state housing laws, and enjoined the City from enforcing it.
Title Insurer – Fraud and Defalcation
Representation of a title insurance company in recovering $8 million in losses incurred by defalcation and fraud of a title agent.
Real Estate Management Company – Tax Protection Dispute
Represented a real estate management company in defending against a multi-million dollar claim that it breached a tax protection agreement with a property owner that contributed an office building to the partnership. The property owner claimed that the tax protection agreement was triggered by the real estate company's merger with another company.
Real Estate Developer – Mitchell Lama Contract Dispute
Represented a major developer in enforcing a $100 million contract to sell a Mitchell Lama project on Roosevelt Island, New York. The trial court dismissed our complaint, but the Second Department, relying on our legal arguments, reversed the lower court and permitted the claim for specific performance to move forward. (R.I. Island House LLC v. North Town Phase II Houses, Inc. (2nd Dep't, May 2008)).
Congregation Yetv Lev D’Satmar, Inc. v. 26 Adar N.B. Corp. – Religious Corporations/Title Dispute
Appearance as amicus curiae on behalf of the New York State Land Title Association in an important appeal involving issues under New York's Religious Corporations law. Congregation Yetev Lev D'Satmar, Inc. v. 26 Adar N.B. Corp., 641 N.Y.S.2d 680 (2nd Dep't 1996)
Real Estate Developer – Mixed-Use Conversion Case
Successfully represented a real estate developer in litigation over its right to convert a building it purchased from office/retail use to mixed office/retail and residential use.
Real Estate Management Company – Repair and Restoration Dispute
Representation of a Manhattan real estate management company in a long-running dispute with a neighbor over the repair and restoration of a chimney. Immediately following a half-day bench trial, the justice ruled from the bench in favor of our client in the full amount claimed plus interest and attorneys' fees.
Finance Company – Ponzi Scheme Foreclosure
Representation of a finance company in its foreclosure of a commercial property placed in receivership due to the collapse of an alleged Ponzi scheme by the ownership entity.
Woolsulate – Lurgi Lentjes Arbitration
Representation of Woolsulate Corp., a New Jersey insulation contractor, in pursuing claims in mediation and arbitration against Lurgi Lentjes, a German energy company, to recover amounts due for services provided by Woolsulate at a PSE&G facility in Trenton, New Jersey.
Real Estate Developer – Construction Litigation
Represented a real estate developer in a multiparty litigation involving alleged construction defects resulting from the conversion of a 17-story refrigerated building into a condominium property. Herrick replaced prior counsel, and was able to quickly settle lawsuits that had been pending in both federal and state court in New York for over a year.
Title Insurance Company – Fraud Action
Representation of a title insurance company in obtaining a $1.4 million judgment and attachment of the defendants' bank accounts in a fraud action.
Negotiated Settlement Resolving Construction Defect Dispute with Luxury Residential Tower’s Board
Represented the sponsor of a luxury Manhattan residential condominium tower in assessing and resolving damage claims asserted by the building’s board of managers in connection with alleged construction defects, violations of construction specifications, failure to comply with the offering plan, and breaches of various warranties. Negotiated a favorable settlement that resolved the dispute amicably and avoided potentially disruptive and costly litigation.
Nomura Securities – 3 Bryant Park Sublease
Represented a subsidiary of Nomura Securities, in a 70,000-sq.-ft. sublease to Stifel, Nicolaus & Company at 3 Bryant Park.
Motions for Temporary Restraining Order and Preliminary Injunction Denied in Ongoing Shareholder Derivative Action
Successfully opposed a motion for a temporary restraining order and preliminary injunction on behalf of the manager and managing agent of five limited liabilities companies that control multi-unit residential properties in New York City. Herrick continues to defend the client in ongoing shareholder derivative litigation in New York state court, alleging commercial torts and seeking, among other things, a dissolution of the LLCs and the appointment of a temporary receiver.
Real Estate Partnership Dispute – Pre-trial Dismissal of Claims for Breach of Fiduciary Duty, Corporate Waste and an Accounting
Herrick negotiated a favorable settlement on behalf of a managing agent and its principals, resolving contentious litigation in New York state court between partners in a venture to develop and lease a medical office building. Prior to reaching the settlement, Herrick secured a number of advantageous rulings - including pre-trial dismissal of claims for breach of fiduciary duty, corporate waste and an accounting - which positioned our clients well in the negotiations that ultimately led to the partnership’s sale of its leasehold interest in the property on favorable terms, a transaction on which Herrick also advised.
National Drug Retailers – Litigation to Recover Property Tax Overcharges
Represented national drug retailers in lawsuits alleging that property managers over billed them millions of dollars for their share of property taxes - successfully opposing the property managers’ motions to dismiss in the trial court and on appeal before the New York Supreme Court's Appellate Division.
Real Estate Investment Fund – Action to Foreclose on $39.5 Million Mortgage Secured by New Jersey Office Building
Herrick delivered a series of important victories on behalf of a real estate investment joint venture in hard fought litigation to foreclose on a $39.5 million mortgage secured by an Edison, New Jersey office building. After obtaining rulings that struck or dismissed all of the defendant debtors’ affirmative defenses and the majority of their counterclaims and third-party claims, the firm won the appointment of a special fiscal agent to oversee the receipt and disbursement of all future revenue from the building as well as an order requiring the return of all misappropriated funds. In the wake of these successes, the parties were able to reach a settlement on extremely favorable terms for the client.
Condominium Owner – Property Damage Claims
Representing a retired hedge fund manager in pursuing claims related to significant property damage to his unit in a 51-story luxury midtown Manhattan tower caused by an overflowing swimming pool located in a neighboring unit.
International Real Estate Investment Firm – Real Estate Brokerage Dispute
Negotiated a favorable settlement on behalf of the North American arm of an international real estate investment and finance company to resolve litigation over a brokerage commission in connection with the client’s acquisition of an iconic Los Angeles building.